N.M. Stat. Ann. § 30-31-2
As used in the Controlled Substances Act:
L. "manufacture" means the production, preparation, compounding, conversion or processing of a controlled substance or controlled substance analog by extraction from substances of natural origin or independently by means of chemical synthesis or by a combination of extraction and chemical synthesis and includes any packaging or repackaging of the substance or labeling or relabeling of its container, except that this term does not include the preparation or compounding of a controlled substance:
M. "narcotic drug" means any of the following, whether produced directly or indirectly by extraction from substances of vegetable origin or independently by means of chemical synthesis or by a combination of extraction and chemical synthesis:
T. "drug paraphernalia" means, except as to use in accordance with the Cannabis Regulation Act [Chapter 26, Article 2C NMSA 1978] or the Lynn and Erin Compassionate Use Act [Chapter 26, Article 2B NMSA 1978], all equipment, products and materials of any kind that are used, intended for use or designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling or otherwise introducing into the human body a controlled substance or controlled substance analog in violation of the Controlled Substances Act. It includes:
(11) objects used, intended for use or designed for use in ingesting, inhaling or otherwise introducing cocaine into the human body, such as:
(12) in determining whether an object is drug paraphernalia, a court or other authority should consider, in addition to all other logically relevant factors, the following:
U. "controlled substance analog" means a substance other than a controlled substance that has a chemical structure substantially similar to that of a controlled substance in Schedule I, II, III, IV or V or that was specifically designed to produce effects substantially similar to that of controlled substances in Schedule I, II, III, IV or V. Examples of chemical classes in which controlled substance analogs are found:
(1) include:
History: 1953 Comp., § 54-11-2, enacted by Laws 1972, ch. 84, § 2; 1979, ch. 2, § 1; 1981, ch. 31, § 1; 1987, ch. 68, § 1; 1989, ch. 177, § 19; 1990, ch. 19, § 2; 1997, ch. 244, § 2; 1997, ch. 253, § 3; 2000, ch. 53, § 1; 2001, ch. 50, § 2; 2002, ch. 100, § 2; 2005, ch. 152, § 9; 2006, ch. 17, § 1; 2008, ch. 44, § 5; 2009, ch. 102, § 2; 2017, ch. 140, § 2; 2019, ch. 116, § 9; 2021 (1st S.S.), ch. 4, § 63.
Cross references. — For the Federal Food, Drug and Cosmetic Act, referred to in the last undesignated paragraph of Subsection W, see 21 U.S.C. § 301 et seq. For Section 505 of that act, also referred to in the last undesignated paragraph of Subsection W, see 21 U.S.C. § 355.
Compiler’s notes. — Senate Bill 6, enacted by the Fifty-Third Legislature, First Session, 2017, was vetoed by the governor on March 11, 2017. Pursuant to the First Judicial District Court’s decision in State ex rel. New Mexico Legislative Council v. Honorable Susana Martinez, Governor of the State of New Mexico et al., D-101-CV-2017-01550, and affirmed by S.Ct. Order No. S-1-SC-36731, on April 25, 2018, which held that Article IV, Section 22 of the New Mexico Constitution requires that objections must accompany a returned bill, Senate Bill 6 was chaptered into law by the Secretary of State.
The 2021 (1st S.S.) amendment, effective June 29, 2021, removed the definitions of "hashish", "hemp", and "marijuana", and revised the definition of "drug paraphernalia", as used in the Controlled Substances Act; deleted former Subsections L and M and redesignated former Subsection N as Subsection L; deleted former Subsection O and redesignated former Subsections P through AA as Subsections M through X, respectively; in Subsection T, after "means", added "except as to use in accordance with the Cannabis Regulation Act or the Lynn and Erin Compassionate Use Act", deleted former Paragraph W(7) and redesignated former Paragraphs W(8) through W(13) as Paragraphs T(7) through T(12), respectively, in Paragraph T(11), after "introducing", deleted "marijuana", after "cocaine", deleted "hashish or hashish oil", deleted former Subparagraph W(12)(e) and redesignated former Subparagraphs W(12)(f) through W(12)(m) as Subparagraphs T(11)(e) through T(11)(l), respectively; and in Subsection U, added new paragraph designations "(1)" and "(2)" and redesignated former Paragraphs X(1) through X(7) as Subparagraphs U(1)(a) through U(1)(g), respectively, after Subparagraph U(1)(g), deleted "Specifically excluded from the definition of 'controlled substance analog' are", and in Paragraph U(2), added "do not include".
The 2019 amendment, effective July 1, 2019, defined "hemp" as used in the Controlled Substances Act; and added a new Subsection M and redesignated former Subsections M through Z as Subsections N through AA, respectively.
The 2017 amendment, effective June 16, 2017, excluded the plant Cannabis sativa L, and any part of the plant, from the definition of "marijuana" in the Controlled Substances Act; in Subsection N, after "that is incapable of germination", added "or the plant Cannabis sativa L, and any part of the plant, whether growing or not, containing a delta-9 tetrahydrocannabinol concentration of no more than three-tenths percent on a dry weight basis".
The 2009 amendment, effective June 19, 2009, in Subsection R, added "euthanasia technician".
The 2008 amendment, effective May 14, 2008, added "certified advanced practice chiropractic physician" in Subsection R.
The 2006 amendment, effective July 1, 2006, revised Subsection Y to add parochial and private schools to the definition of a drug-free school zone.
The 2005 amendment, effective June 17, 2005, provided in Subsection S that a "prescription" means an order given by a licensed practitioner or the practitioner's agent, including an order given by electronic transmission, and providing that the order bear the name and address of the prescriber, his license classification, the name and address of the patient, the name and quantity of the drug prescribed, directions for use, and the date of issue; and added the definition of "valid practitioner-patient relationship" in Subsection Z to mean the relationship defined by the practitioner's licensing board.
The 2002 amendment, effective July 1, 2002, inserted "physician assistant, prescribing psychologist" in Subsection R.
The 2001 amendment, effective June 15, 2001, substituted "rules" for "regulations" in Subsections E and S, and inserted "pharmacist, pharmacist clinician" to the definition of "practitioner" in Subsection R.
The 1997 amendment, effective June 20, 1997, added "certified nurse-midwife" and "or certified" following "licensed" in Subsection R.
The 1990 amendment, effective July 1, 1990, added Subsection Y and made minor stylistic changes throughout the section.
The 1989 amendment, effective July 1, 1989, substituted "drug or substance" for "drug, substance or immediate precursor" in Subsection E; deleted former Subsection M, which read: "'immediate precursor' means a substance which the board has designated by regulation as being the principal compound commonly used or produced primarily as an immediate chemical intermediary used in the manufacture of a controlled substance, the control of which is necessary to prevent, curtail or limit manufacture"; redesignated former Subsections N through Y as present Subsections M through X; made minor stylistic changes in Paragraph (4) of Subsection O, in the first sentence of Subsection W, and in Subsection X; and in Subsection V inserted "or controlled substance analogs" in Paragraph (9) and in subparagraph (c) of Paragraph (13).
Drug paraphernalia defined. — Section 30-31-2V NMSA 1978 clearly and unambiguously does not include ephedrine within its definition of drug paraphernalia. State v. Mcwhorter, 2005-NMCA-133, 138 N.M. 580, 124 P.3d 215, cert. denied, 138 N.M. 586, 124 P.3d 564.
Constitutionality. — The Drug Paraphernalia Act is not vague or overbroad. The General Stores, Inc. v. Bingaman, 695 F.2d 502 (10th Cir. 1982).
Personal use exception. — Trafficking by manufacture as defined in Section 30-31-2M NMSA 1978 does not allow for a personal use exception. State v. Marshall, 2004-NMCA-104, 136 N.M. 240, 96 P.3d 801, cert. denied, 2004-NMCERT-008, 136 N.M. 492, 100 P.3d 197.
Search for "controlled substances". — Specification in a search warrant of "controlled substances" kept on premises contrary to law was as precise as the situation permitted considering the wide variety of drugs used by addicts, the words used in the warrant having a definite meaning in that they referred to certain and definite lists of drugs and their derivatives, and left nothing to the discretion of the officers. State v. Quintana, 1975-NMCA-034, 87 N.M. 414, 534 P.2d 1126, cert. denied, 88 N.M. 29, 536 P.2d 1085, and cert. denied, 423 U.S. 832, 96 S. Ct. 54, 46 L. Ed. 2d 50 (1975).
Term "constructive transfer" is not void under due process clause on the grounds of vagueness. State v. McHorse, 1973-NMCA-144, 85 N.M. 753, 517 P.2d 75.
Constructive delivery. — A "constructive delivery" occurs when the conduct of the parties is such as to be inconsistent with any other supposition than that there has been a change in the nature of the holding. State v. McHorse, 1973-NMCA-144, 85 N.M. 753, 517 P.2d 75.
Aiding actual transfer. — Testimony that seller handed marijuana to defendant, who in turn handed it to undercover agent, was sufficient evidence of aiding and abetting "actual transfer" of marijuana. State v. Montoya, 1974-NMCA-025, 86 N.M. 155, 520 P.2d 1100.
"Distributing" includes prescription for other than legitimate medical purpose. — When a physician writes a prescription neither for a legitimate medical purpose nor in the usual course of his professional practice, he is "distributing" drugs. State v. Carr, 1981-NMCA-029, 95 N.M. 755, 626 P.2d 292, cert. denied, 95 N.M. 669, 625 P.2d 1186, and cert. denied, 454 U.S. 853, 102 S. Ct. 298, 70 L. Ed. 2d 145 (1981), overruled on other grounds by State v. Olguin, 1994-NMCA-050, 118 N.M. 91, 879 P.2d 92, aff'd in part, 1995-NMSC-077, 120 N.M. 740, 906 P.2d 731.
Agency not defense to distribution charge. — Court properly refused instructions defining agency and telling the jury that if the accused had acted as agent for police officers in obtaining heroin he could not be convicted of distributing it, since agency is not a defense to a distribution charge. State v. Bustamante, 1978-NMCA-062, 91 N.M. 772, 581 P.2d 460.
Mailing as distribution. — Placing a controlled substance in the mail was a constructive transfer which had the effect of turning the controlled substance over to an agent for delivery and constituted a distribution. State v. McHorse, 1973-NMCA-144, 85 N.M. 753, 517 P.2d 75.
Distribution to minor. — Neither the federal constitution nor 18 U.S.C. § 1716 preempt New Mexico jurisdiction over distribution of controlled substances to a minor through the use of the mails. State v. McHorse, 1973-NMCA-144, 85 N.M. 753, 517 P.2d 75.
Subsection M virtually identical to USCA. — Subsection M of this section is virtually identical to the definition of manufacturing found in the Uniform Controlled Substances Act (1994). State v. Marshall, 2004-NMCA-104, 136 N.M. 240, 96 P.3d 801, cert. denied, 2004-NMCERT-008, 136 N.M. 492, 100 P.3d 197.
Distribution not required from manufacturing. — There is nothing in the language of Subsection M of this section to suggest that manufacturing requires distribution or an intent to distribute. State v. Marshall, 2004-NMCA-104, 136 N.M. 240, 96 P.3d 801, cert. denied, 2004-NMCERT-008, 136 N.M. 491, 100 P.3d 197.
No personal use exception in Subsection M. — The legislature has not included personal use as one of the exceptions specifically set forth in Subsection M of this section. State v. Marshall, 2004-NMCA-104, 136 N.M. 240, 96 P.3d 801, cert. denied, 2004-NMCERT-008, 136 N.M. 491, 100 P.3d 197.
Growing marijuana as manufacturer. — Defendant was a "manufacturer" of marijuana within the contemplation of 54-7-2, 1953 Comp. (now repealed), by reason of his being a grower and cultivator thereof. State v. Gonzales, 1967-NMCA-030, 78 N.M. 591, 435 P.2d 210; State v. Ortiz, 1967-NMCA-019, 78 N.M. 507, 433 P.2d 92 (decided under former law, statute repealed).
Marijuana is not a narcotic drug under present statutes. State v. Mabrey, 1975-NMCA-098, 88 N.M. 227, 539 P.2d 617.
Marijuana was formerly classified as narcotic. — Expert witness' identification of substance as cannabis leaves, or a substance neither chemically or physically distinguishable from cannabis, was sufficient evidence for jury to find that the substance was a "narcotic drug" under former law. State v. Tapia, 1966-NMSC-245, 77 N.M. 168, 420 P.2d 436 (decided under prior law).
Cannabis sativa. — State was not required to show that the cannabis leaves were sown or cultivated, as indicated by the name "sativa." State v. Tapia, 1966-NMSC-245, 77 N.M. 168, 420 P.2d 436 (decided under prior law).
Substances held identical. — Marijuana, cannabis indica and cannabis sativa L. have been held to be identical as a matter of law. State v. Everidge, 1967-NMSC-035, 77 N.M. 505, 424 P.2d 787, cert. denied, sub nom. Greene v. United States, 386 U.S. 976, 87 S. Ct. 1171, 18 L. Ed. 2d 136 (1967); State v. Romero, 1964-NMSC-245, 74 N.M. 642, 397 P.2d 26 (decided before 1979 amendment).
"Marijuana" and "cannabis indica" are merely geographical oriented names of cannabis, whereas "cannabis sativa L." is the botanical name of cannabis. State v. Romero, 1964-NMSC-245, 74 N.M. 642, 397 P.2d 26 (decided before 1979 amendment).
"Mature stalks" of marijuana exempt. — Where expert testified that marijuana in defendant's possession was a "mature stalk" which is specifically exempted under this section, conviction for unlawful possession of marijuana could not be sustained. State v. Benavidez, 1962-NMSC-137, 71 N.M. 19, 375 P.2d 333.
Cocaine may be classified as "narcotic". — The legislature can rationally classify cocaine, a nonnarcotic central nervous system stimulant, as a narcotic for penalty and regulatory purposes. State v. Chouinard, 1981-NMSC-096, 96 N.M. 658, 634 P.2d 680, cert. denied, 456 U.S. 930, 102 S. Ct. 1980, 72 L. Ed. 2d 447 (1982).
Heroin is narcotic drug as matter of law. State v. Gonzales, 1974-NMCA-080, 86 N.M. 556, 525 P.2d 916, overruled on other grounds by State v. Bender, 1978-NMSC-044, 91 N.M. 670, 579 P.2d 796 (decided under prior law).
Jury instruction. — Trial court did not err in instructing the jury, as a matter of law, that heroin was a narcotic drug, since Subsection P (now Subsection O) of this section includes opium and any derivative of opium within the definition of narcotic drug, and 30-31-6 NMSA 1978 lists heroin as one of the opium derivatives. State v. Romero, 1974-NMCA-015, 86 N.M. 99, 519 P.2d 1180.
A natural person is included within definition of "person." State v. Tucker, 1974-NMCA-049, 86 N.M. 553, 525 P.2d 913, cert. denied, 86 N.M. 528, 525 P.2d 888; State v. Romero, 1974-NMCA-015, 86 N.M. 99, 519 P.2d 1180; State v. McHorse, 1973-NMCA-144, 85 N.M. 753, 517 P.2d 75.
"Prescription" construed. — If a written direction is not for a substance to be used in treating illness, it is not a prescription as that term is used in the Controlled Substances Act (30-31-1 NMSA 1978). State v. Carr, 1981-NMCA-029, 95 N.M. 755, 626 P.2d 292, cert. denied, 95 N.M. 669, 625 P.2d 1186, and cert denied, 454 U.S. 853, 102 S. Ct. 298, 70 L. Ed. 2d 145 (1981), overruled on other grounds by State v. Olguin, 1994-NMCA-050, 118 N.M. 91, 879 P.2d 92, aff'd in part, 1995-NMSC-077, 120 N.M. 740, 906 P.2d 731.
Drug paraphernalia guidelines adequately clear. — The guidelines present in Subsection W (now Subsection V) are adequate to alert law enforcement officers as to what activity is specifically proscribed. The General Stores, Inc. v. Bingaman, 695 F.2d 502 (10th Cir. 1982).
Drug paraphernalia. — The "intended for use" language in Subsection W (now Subsection V) is applicable to the state of mind of the individual charged with the offense of selling, distributing or displaying drug paraphernalia. The statutory definition of "drug paraphernalia" is thus clear and provides notice of what is prohibited. The General Stores, Inc. v. Bingaman, 695 F.2d 502 (10th Cir. 1982).
Drug paraphernalia descriptive materials. — Subsection W(13)(f) (now Subsection V(13(f)), regarding descriptive materials accompanying an object, does not constitute a chilling factor nor invade the right of free speech. Any effect on protected speech is incidental. The General Stores, Inc. v. Bingaman, 695 F.2d 502 (10th Cir. 1982).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 25 Am. Jur. 2d Drugs, Narcotics and Poisons §§ 1, 2, 6, 8, 9, 10, 14 et seq., 33, 40, 43, 47, 48, 49, 54 et seq., 66, 67, 69, 72, 75, 76, 96, 98, 100, 120 et seq., 130, 136, 140, 141, 153, 161 et seq., 179 et seq., 191, 200, 206, 211, 212, 229 et seq.
Chemically synthesized LSD, STP, MDA or other hallucinogenic or psychedelic substances as narcotics for purposes of drug prosecution, 50 A.L.R.3d 1284.
Sufficiency of prosecution proof that substance defendant is charged with possessing or selling, or otherwise unlawfully dealing in, is marijuana, 75 A.L.R.3d 717.
Competency of drug addict or user to identify suspect material as narcotic or controlled substance, 95 A.L.R.3d 978.
28 C.J.S. Drugs and Narcotics § 1 et seq.